First published July 2, 2003, in the Chicago Free
Press.
It was closer than you think. Although the U.S. Supreme Court
declared Texas' (and three other states') same-sex sodomy law
unconstitutional by 6 to 3, it was by a narrower 5 to 4 majority
that the Court declared the heterosexual-inclusive sodomy laws of
nine other states unconstitutional and reversed the opprobrious
1986 Bowers v Hardwick decision upholding Georgia's sodomy law.
And the Court reversed Bowers only because Justice Anthony
Kennedy, who had written an important gay-supportive, equal
protection opinion in Romer v Evans, passed by his earlier
argument, which would have been sufficient to strike down the Texas
law, to reconsider Bowers, find it deficient in virtually every
respect, and declare that Bowers failed to recognize - and the
Texas law violated - a right to liberty inherent in the Due Process
Clause of the 14th Amendment.
In sentences that will become famous, Kennedy wrote:
- "Liberty presumes an autonomy of self that includes freedom of
thought, belief, expression, and certain intimate conduct. The
instant case involves liberty of the person both in its spacial and
more transcendent dimension."
- "When homosexual conduct is made criminal by the law of the
State, that declaration in and of itself is an invitation to
subject homosexual persons to discrimination both in the public and
in the private spheres."
- "The petitioners are entitled to respect for their private
lives. The state cannot demean their existence or control their
destiny by making their private sexual conduct a crime."
Dissenting Justice Antonin Scalia, who is clearly the Vatican's
man on the Supreme Court, ranted impotently and (since we won)
amusingly about "homosexual sodomy," "homosexual activists," "the
so-called homosexual agenda," and flamboyantly charged that "the
court has taken sides in the culture war."
But Scalia, for all his repute for great legal learning, had
nothing to offer by way of arguments except: a) a majority should
have a right to force others to obey their moral rules no matter
what, and b) allowing "homosexual sodomy" removes the only barrier
to homosexual marriage. Is there a genuine state interest in
criminalizing same-sex sodomy per se? Scalia offered none.
For the rest, Scalia's dissent consisted of ineffective
counter-punching, evasions, misrepresentations, sophistry, sneers
and dire predictions. There is an old lawyers' admonition that when
you don't have the facts or the law on your side, bang on the
table. What Scalia wrote was the judicial equivalent of banging his
spoon on his high chair.
Legal reasoning aside, a careful reading of the opinions makes
clear that the fundamental difference between the pro-gay majority
and the anti-gay minority is the majority's willingness to
acknowledge - and take legal account of - the fact that gays and
lesbians are types of persons just as heterosexuals are and that
sexual orientation is a core aspect of a person's being.
Justice O'Connor, whose concurring opinion, though limited to an
equal protection argument, is the best argued and best written,
explained the significance of this:
- "Those harmed by this law are people who have a same-sex sexual
orientation and thus are more likely to engage in behavior
prohibited by (the Texas law)."
- "While it is true that the law applies only to conduct, the
conduct targeted by this law is conduct that is closely correlated
with being homosexual. Under such circumstances, Texas' sodomy law
is targeted at more than conduct. It is instead directed toward gay
persons as a class."
- "The State cannot single out one identifiable class of citizens
for punishment that does not apply to everyone else with moral
disapproval as the only asserted state interest for the law."
The difference in approach is signaled by the fact that Kennedy
wrote of "homosexual persons," "homosexuals," and "persons who were
homosexual." Similarly, O'Connor wrote of "homosexuals,"
"homosexual persons," "a same-sex sexual orientation," "being
homosexual," and even (as above) "gay persons."
By contrast, Scalia wrote almost exclusively of acts:
"homosexual sodomy," "homosexual conduct," "consensual sodomy,"
"homosexual acts," "homosexuality," "sodomy" and "those who engage
in homosexual acts."
If the issue of sodomy laws is now settled, can we find anything
in this decision for future litigation. Yes, indeed.
"Don't ask, don't tell" and the military's sodomy law are more
vulnerable. If neither is quite unconstitutional on the basis of
Kennedy's due process argument, they are arguably so under
O'Connor's equal protection argument, which Kennedy declared
"tenable."
Although O'Connor avoided discussing heterosexual-inclusive
sodomy laws like the military's, her argument implies they too
would be unconstitutional because of their disparate impact on gays
and heterosexuals. Civilian deference to the military has its
limits.
Kennedy was canny enough to draw attention to the possibility of
gay marriage - without the red flag of naming it - and invite
litigation by pointedly leaving the question open, referring to "a
personal relationship that, whether or not entitled to formal
recognition in the law...."
But the learned Scalia himself opined that O'Connor's reasoning
on equal protection grounds "leaves on pretty shaky ground state
laws limiting marriage to opposite-sex couples." However that may
be, the Defense of Marriage Act is almost surely dead.